Local defense attorneys speculate on what's in store for Tarek Mehanna

Friday

Oct 23, 2009 at 12:01 AMOct 23, 2009 at 11:14 PM

The case of Tarek Mehanna is now in the hands of lawyers. Mehanna, 27, of Sudbury was arrested Wednesday on charges of conspiracy to provide material support to terrorists.

Dan McDonald

The case of Tarek Mehanna is now in the hands of lawyers.

Mehanna, 27, of Sudbury was arrested Wednesday on charges of conspiracy to provide material support to terrorists.

If convicted, Mehanna could face up to 15 years in prison and a $250,000 fine for that one charge, and there may be more charges coming.

A detention hearing is scheduled for next week. That's when the government will have to reveal information that is sufficient enough to convince a judge there was probable cause for a crime and that Mehanna is dangerous and a flight risk, says Framingham attorney John LaChance, who is not involved in the case.

LaChance was an assistant U.S. attorney in the late 1970s and he now estimates 35 percent of his criminal practice is on the federal level.

"The issue is not whether he's a terrorist or made statements contrary to the United States. It's whether he broke any laws," he said yesterday .

Edward Ryan, a former state prosecutor who has been defending federal and state criminal cases for the last 30 years, agreed.

"They may contend these conversations don't rise to the level of a crime," said Ryan, a former president of the Massachusetts Bar Association. "In other words it's a guy (shooting the breeze). He's just sitting back in a chair fantasizing."

Many questions loom for both sides.

For instance, the use of surveillance opens a whole range of issues to be probed, says LaChance.

"Was the surveillance lawful and should it be permitted to be introduced in the trial?" said LaChance. "Did they do it with a warrant or without a warrant? Did they do it under the authority of a president? I don't know what techniques were used. Issues may arise."

John Duff, a retired attorney who teaches a course on al Qaeda at Regis College in Weston, said the philosophical battle in post-9/11 America is between security and liberty.

And he questioned if "the government imposed on this fellow's liberty in order to protect us," will he walk?

He added, "Most of the time they did it. It's just a matter of whether it can be proven beyond a reasonable doubt."

Other questions prevail.

Did the informant mentioned in court papers get paid? Is he credible?

"(The defense) will attempt to suggest the source was cooperating," to get in the good graces of federal investigators, said Ryan.

The feds will probably have a number of additional charges that they didn't have to delineate in the complaint that will appear when the indictment comes down, said LaChance.

Middlesex District Attorney Gerry Leone, who as a federal prosecutor convicted al Qaeda terrorist Richard Reid, aka "The Shoe Bomber," said Wednesday the prosecution had yet to show all its cards.

He thought the case, "is even more solid than one would know at this time."

The existing evidence is intriguing: Allegations of trips to the Middle East in February 2004 in search of terrorist training camps, the distribution of jihad videos, and attempts to radicalize others.

But the defense will likely attack vital elements of the allegations, said Ryan, who stressed, "The defendant doesn't have to prove anything."

"What happened on those trips to Yemen?" he asked. "Is there a relative over there that is going to say, 'No he came over to visit his sick aunt.' Is there a legitimate or explainable reason for these trips out of the country?"

There's a procedural attack for a defense, says LaChance, and then there's a factual attack.

"Sometimes defenses can be developed by not contesting the acts but contesting the required state of mind. By arguing the required state of mind wasn't present when certain acts were there," he said.

LaChance added, "The trouble with some of these tight cases is that there are often areas where you can develop information that puts the quality of their evidence on trial. That's what you have to do in this type of case."

The prosecution, however, will undoubtedly flex muscle that comes with being attached to the federal government.

Federal investigators have the luxury of having time to build a case, as well as massive resources for "all sorts of sophisticated surveillance," said LaChance.

Agents from the FBI and other federal law enforcement agencies typically make great witnesses, said LaChance.

He mentioned Mehanna's courtroom actions on Wednesday when the 27-year-old initially refused to stand and then knocked over his chair when he did eventually rise.

Mehanna may want "to use the case as a method to get his political message out," said LaChance.

But he quickly added, Mehanna's lawyer "Jay Carney is a terrific lawyer. I think he would make recommendations for handling the case that this guy will eventually come around to."